Preparatory Information Before Contesting a Will in NSW

Assessing the Will’s Validity

A legal professional can assist you with evaluating the Will’s validity prior to embarking on a Will contest, however, family provision claims turn on questions of provision (or lack thereof) rather than the validity of the Will. If you suspect the Will may have issues casting doubt over its validity, you may need to pursue a separate process known as challenging a Will. Circumstances where doubt may be raised in relation to the validity of a Will includes where the deceased was subjected to undue influence while making their Will, where the Will is a product of fraud, or whether the testator lacked testamentary capacity because they were suffering dementia or Alzheimer’s Disease (or another cognitive impairment casting doubt on their mental capacity) when they made their Will.

If a person suspects a Will may be invalid they should seek advice from an experienced will and estates lawyer. 

In some cases, a person challenging the validity of a Will may choose to file a probate caveat with the probate court, which will prevent probate being granted until it is removed or the court orders its removal. In some cases the parties agree that the caveat can be removed subject to the matter being settled in accordance with agreed terms. 

The Role of Probate in Contesting a Will in NSW

In NSW, a Will can be contested before or after probate has been granted, as long as the family provision claim is commenced within 12 months of the date of the death of the deceased person. A grant of probate already issued does not preclude a family provision claim being lodged in Court.

Initial Considerations Before Contesting

When contesting a Will in Australia, a person should first consider whether they are an eligible person to contest a Will. A person who does not constitute an eligible person may be precluded from contesting a Will. Although each State and Territory is different, eligibility usually depends on the applicant’s relationship with the deceased (including, but not always, whether or not they were dependent on the deceased and their level of financial need from the deceased).

The second step is usually to determine whether they satisfy the substantive threshold, which in NSW, involves the consideration of whether the deceased’s Will has provided adequate provision for the applicant’s proper maintenance, education or advancement in life. 

The size of the estate will often impact whether a person decides to contest a Will. The costs associated with contesting a Will may not be worth it for a small estate. In these instances, it may be best to focus on negotiating an outcome outside of Court rather than commencing court proceedings.

A person may also bring a family provision claim where a person dies without a will and where the distribution under the rules of intestacy would leave them with inadequate provision. 

1. Obtaining a Copy of the Will

The first step is to obtain a copy of the deceased’s Will which will outline how the deceased’s estate is to be distributed amongst beneficiaries. Wills are often found at the deceased’s home, with their lawyer, or in personal security, such as a safe or safety deposit box.

2. Negotiations

Once the Will is obtained, the person (the claimant) should seek advice on whether they may have a claim. 

The person may then notify the other side (usually the executor) of their claim and attempt to settle a favourable outcome through negotiations. 

Many family provision claims are resolved through the negotiation and mediation process. Negotiations are often the most efficient and cost effective way to obtain an outcome however, it is important to note that the success of negotiations depends on all parties’ willingness to negotiate. 

3. Filing a Family Provision Claim

If the matter is not resolved through pre-litigation negotiations, the person may need to go to Court and obtain an outcome through litigation. This involves preparing and filing a statement of claim in the Supreme Court of NSW commencing a family provision claim. 

4. Preparing to go to Court: Gathering Evidence

If a claim does not settle through mediation or negotiation, the matter may require determination by a Court. 

In NSW, when determining a claim, the Court may consider 16 factors set out in section 60(2) of the Succession Act 2006 (NSW). Each party would be required to prepare, file and serve their evidence in advance of the matter being determined. Evidence comes in many forms including written evidence, testimonial evidence, physical evidence, expert evidence, records and information from third parties, digital and electronic evidence, medical evidence, and expert evidence. The Court will set a timetable for the filing and service of evidence prior to the final hearing.

Accurate and reliable evidence is crucial and even claims that appear strong can fail on weak evidence.

Understanding the Court Process 

The process involved can be complicated, especially if formal Court proceedings have been commenced. A person involved in a claim (either as a beneficiary or executor) should engage an experienced legal representative to represent them throughout the process. 

Settlement and Court Approval

If the parties can reach an agreement, the parties can formalise the agreement through a written settlement agreement such as a Deed of Family Arrangement. In some cases, the settlement may also be subject to Court approval. 

5. If Mediation Fails: Going to Hearing

In NSW, all family provision claims in the Supreme Court are required to go to mediation unless otherwise ordered by the Court. A mediator is an accredited legal professional who can help the parties reach a settlement outside a Court. Engaging in mediation can often reduce delays and costs, and if successful, can avoid the delays and costs that may otherwise be experienced when preparing for and attending the Supreme Court for a final hearing.

If the parties are unable to settle at mediation, the matter may proceed to a final hearing.

The parties can usually reach agreement anytime before the Court hands down its decision following a Court hearing.

6. The Hearing: Presenting Your Case

At the final hearing, each party will have a chance to present their evidence and cross-examine the other parties’ witnesses to dispute claims made by other parties. 

At the end of the hearing, each party will have a chance to make final submissions summarising their case and the evidence, painting it in the most favourable light. 

After the Court hearing, the Judge will then make a decision which may involve dismissing the claim or varying the distribution of the estate of the deceased person. 

The Court may also make a decision on whether the unsuccessful party is required to pay some or all of the successful party’s legal costs (such as legal fees and other legal expenses). 

After the Decision: Understanding the Outcome

Once a decision is handed down, each party will read the decision in detail and may seek advice on whether there are any grounds to appeal the decision. 

Time Limits and Deadlines in NSW

Strict deadlines apply for family provision applications in NSW and if proceedings are being contemplated, it is crucial to file a claim within the deadline. An application for a family provision order must be made no later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

Have Our NSW Wills and Estate Lawyers On Your Side

If you believe you may need to contest a will, are looking to bring a claim in Court, or have doubts regarding the validity of a Will, contact the Empower Wills and Estate Lawyers legal team today to act on your behalf. Unlike generalist lawyers or lawyers in other specialist areas, such as personal injury lawyers, our lawyers are experts in contested will and estate cases. 

We are here to help you navigate the complexities of contesting a Will, including assessing the strength of your claim and preparing the relevant Court documents and evidence.

We give expert legal advice to help you understand the various options, prospects and risks which apply to your case.